A. Ramamurthi, J.@mdashThe defendants in the suit are the appellants.
2. The case in brief is as follows:- The plaintiff filed a suit for declaration of title to the suit property and for delivery of possession. The suit
property originally belonged to one Krishnasamy Naidu and he executed a settlement deed dated 28.12.1953 in favour of Rangadoss Naidu. The
settlement deed was duly accepted and acted upon. Rangadoss Naidu died some 20 years back as bachelor and his only brother and heir was
Venugopal Naidu and he took possession of the property as the owner. He also did not marry. The plaintiff''s father called S.D.Sami Naidu was
the close friend of Venugopal Naidu and Venugopal Naidu was taking meals in the house of Sami Naidu regularly. The plaintiff''s family alone were
taking care of Venugopal Naidu till his death. On 17.12.1979 Venugopal Naidu executed a registered Will bequeathing the property in favour of
the plaintiff. The Will was duly executed in a sound and disposing state of mind and duly attested. It was the last testament of testator and took
effect on his death. He handed over the original title deeds and also the original Will to the father of the plaintiff. Venugopal Naidu was suffering
from cough and fever and he was given treatment in Krishna Hospital, Cuddalore for ten days prior to his death.
The 1st defendant is the daughter of Venkatasubbu Naidu and the 2nd defendant is the husband of the 1st defendant. Venkatasubbu Naidu
trespassed into the suit property in 1980 forcibly and on behalf of the plaintiff, notice was issued on 08.01.1980 calling upon him to vacate the
property and hand over possession. On 17.01.1980 he sent a reply with false allegations. Venkatasubbu Naidu was the pangali of deceased
Venugopal Naidu. The plaintiff and his predecessors-in-title were in possession for more than 12 years. After the death of Venkatasubbu Naidu,
the defendants are in illegal occupation of the property and hence the suit.
The defendants admitted that the suit property originally belonged to Venugopal Naidu, but he was not living with S.D.Sami Naidu nor he was
taking care of him. Venugopal Naidu was living in the property alone and died on 21.12.1979. On his death, he left behind his only heir
Venkatasubbu Naidu, who is his pangali, grandfather''s younger brother''s son. Venkatasubbu Naidu took possession of the property and
executed a Will while he was in sound and disposing state of mind bequeathing the property in favour of his daughter, the 1st defendant. She had
succeeded to the property as a legatee and she is in possession. The notice issued by the plaintiff has been replied. The 1st defendant denied the
truth and validity of the Will said to have been executed by Venugopal Naidu. He was seriously ill and bedridden for a week prior to the death and
admitted in Krishna Nursing Home. At that time, Venugopal Naidu was not in sound and disposing state of mind. Sami Naidu with the help of his
parties has concocted and fabricated the document. The 3rd defendant was a tenant of Venugopal Naidu and after his death, he has been paying
rent to Venkatasubbu Naidu and now the 1st defendant is receiving the rent.
The trial court framed 5 issues and on behalf of the plaintiff, P.Ws.1 to 4 were examined and Exs.A-1 to A-22 were marked and on the side of the
defendants, D.Ws.1 to 3 were examined and Exs.B-1 to B-4 were marked. The trial court dismissed the suit and aggrieved against this, the
plaintiff preferred A.S.147 of 1989 on the file of District Court, Cuddalore and the learned Judge after hearing the parties, allowed the appeal, set
aside the judgment and decree of the trial court and decreed the suit. Aggrieved against this, the defendants have come forward with the present
second appeal.
3. At the time of admission of the second appeal, this court framed the following substantial question of law for consideration:
Whether the judgment of the lower appellate Court is vitiated by its failure to consider the relevant evidence on record on the question of the
genuineness and validity of the Will Ex.A-2 ?
4. Heard the learned counsel for the parties.
5. It is admitted that the suit property was enjoyed by Venugopal Naidu and he died on 21.12.1979 in Krishna Hospital at Cuddalore. The minor
represented by father, natural guardian, filed the suit claiming declaration relating to the suit property and also for recovery of possession based
upon the registered Will dated 17.12.1979 executed by Venugopal Naidu. It is the specific case of the plaintiff that Venugopal Naidu was not
married and he was taking meals only in the house of the plaintiff. The medical expenses relating to Venugopal Naidu was also met by the plaintiff''s
father is evident from Exs.A-3 to A-13. The plaintiff stated that Venugopal Naidu was suffering from cough and fever and was admitted in the
hospital and he expressed his desire to execute a Will in favour of the plaintiff and he was taken in judkha to the Sub Registrar''s Office, wherein
P.W.2 wrote the Will as per the information furnished by the testator. It was duly attested by P.Ws.3 and 4. It is stated that the Will was executed
by the testator while he was in sound and disposing state of mind and the Will was registered on the next day. The appellants took a plea denying
the truth and validity of Ex.A-2 dated 17.12.1979. According to them, the deceased was in the hospital and he was unable to move about. The
learned counsel for the appellants/defendants further stated that if the testator wants to execute the Will, it could have been written even in the
hospital itself duly attested by the doctor, who treated him. Moreover, only the thumb impression of the testator was taken in the document,
thereby indicating that it could not have been executed by him.
6. The learned counsel for the appellants/defendants contended that the lower appellate court must have seen that since the deceased Venugopal
Naidu was an inpatient in Krishna Hospital at Cuddalore for 10 days prior to the death, he could not have executed the Will Ex.A-2 and much less
with a sound and disposing state of mind. The court below also failed to see that no satisfactory evidence has been let in to show that the deceased
had a sound and disposing state of mind and was able to go from the Nursing Home to the Sub Registrar''s Office. The court below also failed to
note that the deceased had not put his signature in Ex.A-2 and he is alleged to have affixed thumb impression and no satisfactory explanation has
been offered for the absence of the signature. The court also failed to note that no attempt was made to establish that the thumb impression in
Ex.A-2 said to have been made by the deceased was really made by him apart from the interested testimony of P.Ws.1 to 4. The court below
must have seen that though the notice under Ex.A-19 was issued to Venkatasubbu Naidu on 08.01.1990, putting forth the claim under Ex.A-2 and
though the latter repudiated the claim attacking the Will as fabricated, the suit was not filed immediately and it was filed only after six years later
after the death of Venugopal Naidu and there is no explanation for the delay.
7. It is admitted that the plaintiff is a stranger to the deceased, whereas Venkatasubbu Naidu is the pangali of the deceased. The burden is only
upon the plaintiff to establish that Ex.A-2 was duly executed and attested by the witnesses and also executed by the testator while he was in a
sound and disposing state of mind. As adverted to, the documents filed on the side of the plaintiff clearly established that the medical expenses was
incurred only by the plaintiff''s father P.W.1. It is clear from the evidence of P.Ws.1 to 4 that the testator was in a sound and disposing state of
mind and he had actually seen the attestors signing the document and similarly the attestors had also seen the testator signing the document. P.W.2
is the scribe of the document and P.Ws.3 and 4 are the attestors to Ex.A-2 and they also went to the Sub Registrar''s office on the next day and
they figured as identifying witnesses under Ex.A-2. A genuine doubt has been raised by the appellants to show that the testator could not have
gone out of the hospital; but the evidence of P.Ws.1 to 4 established that the testator went in a judkha on the date of execution of Ex.A-2 and also
went on the next day for the purpose of registration. There is no reason to discard the testimony of P.Ws.2 to 4 and they are independent
witnesses.
8. It is also necessary to state that although the testator was signatory, he had affixed the thumb impression in the Will. Now, the same is
questioned by the appellants; but however, before this Court, the impugned document was sent to the finger print expert with the admitted thumb
impression for the purpose of comparison. The finger print expert after comparison, came to the conclusion that the thumb impression in the
impugned document was that of the testator and given valid and convincing reasons. This report was also seen by the learned counsel of either side
and the same is marked as Ex.C-1. Now, the plaintiff has positively established that the thumb impression in Ex.A-2 is that of the testator. But the
learned counsel for the appellants contended that even assuming that the thumb impression was put up by the testator, there is nothing to show that
mind followed his act. When the evidence of P.Ws.2 to 4 is clear about the state of mind of the testator, it can be safely concluded that he was in a
sound and disposing state of mind. Some minor discrepancy in the evidence has been brought out, but it will not affect the case of the plaintiff in
any way. The prior title deeds, namely, Exs.A-1, A-17 and A-18 were also entrusted with P.W.1, thereby establishing that Ex.A-2 has been
properly proved.
9. Learned counsel for the respondent relied on the decision reported in Corra Vedachalam Chetty ..vs.. G.Janakiraman 2001 (3) CTC 283 for
the following preposition:
Object of probate proceedings is not to render will ineffective but to make it effective and render terms of will operative - Court has to see that
testator is not available to depose - Court should be cautious while dealing with evidence placed before him in relation to execution and attestation
and state of mind of testator - Court cannot allow exploitation of this caution by unscrupulous caveators who choose to cull out imaginary suspicion
to render will ineffective
There is no dispute about this principle.
10. Learned counsel for the appellants took another plea stating that after the death of Venugopal Naidu, the plaintiff sent a notice to
Venkatasubbu Naidu dated 08.01.1980 under Ex.A-19. It was duly replied under Ex.A-20 dated 17.01.1980 disputing the truth and validity of
the Will Ex.A-2. But however, there is some delay on the part of the plaintiff in instituting the suit. No doubt, there is delay of six years in filing the
suit and it was also filed after the death of Venkatasubbu Naidu. It was commented upon by the learned counsel for the appellants that there is no
reasonable explanation on the part of the plaintiff relating to the delay. No doubt, as early as 1980 the truth of Ex.A-2 has been disputed by
Venkatasubbu Naidu, but the evidence of P.Ws.2 to 4 and the opinion given by the finger print expert clearly indicated that the Will was duly
executed by the testator while he was in a sound and disposing state of mind. Simply because there was some delay of six years in instituting the
suit, it cannot be used as a ground to reject the claim of the plaintiff. In my view, the lower appellate court had correctly appreciated the
contentions of the parties and as the finding is based on legal evidence, no interference is called for.
11. For the reasons stated above, the second appeal fails and is dismissed. No costs.
